Chapter 5: Civil Liberties

1. Chapter 5:Civil Liberties Shea, Green, and Smith Living Democracy, Second Edition

2. May 3rd, 2003 protest against Bush Protesters arrested for breaking city ordinances Protest in Crawford, Texas

3. What Are Civil Rights? • Civil rights issues: concerned with questions of equal status and treatment • Civil liberties issues: concerned with questions of the freedoms and due process provided by the Bill of Rights

4. Early Interpretation of the Bill of Rights Early Supreme Court • Seen as weak institution • Cases are primarily about: - distribution of power among branches of government - relationship between state and federal government

5. Early Interpretation of the Bill of Rights • Barron v. Baltimore • In early 1830s, John Barron files suit against city of Baltimore • Alleged that city ruined his wharf business • Claimed protection under Fifth Amendment • Supreme Court decides against him • Bill of Rights doesn’t apply to states, only to federal government

6. Early Interpretation of the Bill of Rights The Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

7. The Incorporation Processand the Nationalization of Constitutional Rights Fourteenth Amendment No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

8. The Incorporation Processand the Nationalization of Constitutional Rights Judges must determine what protections, if any, are provided by the phrases: “Privileges or immunities of citizens” “Equal protection of thelaws” “Due process of law”

9. The Incorporation Processand the Nationalization of Constitutional Rights Incorporation The process through which the Supreme Court examines individual provisions of the Bill of Rights and applies them against state and local officials.

10. Lawyers ask Supreme Court to interpret the Due Process Clause in such a way as to protect individual rights against state and local governments. Supreme Court refuses to incorporate a personal right until 1925 decision in Gitlow v. New York. The Incorporation Processand the Nationalization of Constitutional Rights

11. The Incorporation Processand the Nationalization of Constitutional Rights Provisions of the Bill of Rights that have never been incorporated • Second Amendment provision linking “a well-regulated Militia” and the right to bear arms • Third Amendment provision against housing troops in private homes • Fifth Amendment right to a grand jury • Seventh Amendment requirement of jury trials in cases over $20 • Eighth Amendment prohibition of excessive bail

12. Pathways of Action: Cruel and Unusual Punishment • Eighth Amendment’s provisions incorporated • Example of Christopher Simmons, Roper v. Simmons

13. First Amendment Rights The First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

14. First Amendment Rights:Freedom of Religion • Two Dimensions • Establishment clause • Free exercise clause

15. First Amendment Rights:Freedom of Religion Establishment: Two Approaches Accommodationist Government may provide support for religion and its associated activities Separationist No contact between government and religion is permitted

16. First Amendment Rights: Freedom of Religion Two important cases in 1960s tilted the U.S. toward the strict separationist perspective • Engel v. Vitale (1962) • School District of Abington Township, Pennsylvania v. Schempp (1963)

17. First Amendment Rights: Freedom of Religion How does the Supreme Court decide cases that involve the Establishment Clause? Lemon test: a standard developed in the 1971 case Lemon v. Kurtzman. The court must ask three questions: 1) Does the law or practice have a secular purpose? 2) Does the primary intent or effect of the law either advance or inhibit religion? 3) Does the law or practice create an excessive entanglement of government and religion?

18. First Amendment Rights: Freedom of Religion Free Exercise Clause key cases and statutes • Minersville School District v. Gobitis (1940) • West Virginia v. Barnette (1943) • Employment Division of Oregon v. Smith (1990) • Religious Land Use and Institutionalized Persons Act (2000)

19. First Amendment RightsFreedom of Religion Free Exercise of Religion “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Robert Jackson, West Virginia v. Barnette (1943)

20. First Amendment Rights: Freedom of Speech Free speech laws must balanceindividual liberties and societal interests.

21. First Amendment Rights: Freedom of Speech Justice Oliver Wendell Holmes “Clear and Present Danger” test would permit prosecution only for speeches and publications that actually posed a tangible, immediate threat to American society. Women protesting against the draft of young men in World War I were stopped by a police officer.

22. Student Profile: Mary Beth Tinker • In 1965, Tinker wore a black armband to school in order to express opposition to the Vietnam War and was suspended. • Supreme Court decided 7–2 that the school had violated her First Amendment rights.

23. First Amendment Rights: Freedom of Speech Symbolic Speech When people take an action designed to communicate an idea

24. Reasonable restrictions on assemblies: First Amendment Rights: Freedom of Speech When can restrictions be put on First Amendment rights? • Time • Place • Manner • – Hate speech • – Fighting words

25. First Amendment Rights: Freedom of the Press 1931 Supreme Court case Near v. Minnesota The Supreme Court rules against the use of prior restraintof publications that criticize the government. Prior restraintA governmental attempt to prevent certain information or viewpoints from being published

26. First Amendment Rights:Freedom of the Press 1971 Supreme Court Case, New York Times Company v. United States • During the Vietnam war, Daniel Ellsberg, a Defense Department analyst, leaked top-secret papers about the war to the newspapers. • The government tried to stop their publication on the grounds that their publication would hurt national security. • Supreme Court ruled that the papers could be published.

27. First Amendment Rights: Freedom of the Press • Press interests versus governmental priorities • Reporter’s privilege • Press Shield Laws • Because there is no constitutional right protecting reporters nationwide, reporters may be found in contempt of court if they refuse to cooperate with criminal investigations.

28. Pathways of Change From Around the World:Iranian Student Newspapers • 47 student publications were closed in 2006. • Two student editors arrested for publishing articles insulting to Islam.

29. First Amendment Rights: Freedom of the Press • ObscenityMiller v. California (1973) • Test for obscenity is based on “community standards.” The basic guidelines for the trier of fact must be: a) whether the “average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

30. First Amendment Rights: Freedom of the Press The Federal Communications Commission regulates television and radio broadcasts.

31. First Amendment Rights: Freedom of the Press How have “community standards” changed over time?

32. Civil Liberties and Criminal Justice The Right to Bear Arms A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. • The Supreme Court has never treated the final part of the amendment as a separate clause that provides individual citizens with a right to own guns. • The Second Amendment has never been incorporated.

33. Search and Seizure Civil Liberties and Criminal Justice The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Exclusionary Rule • Under this rule, evidence that is obtained improperly by the police cannot be used to prosecute someone accused of a crime.

34. Search and Seizure Civil Liberties and Criminal Justice In 1970s and 1980s, the Supreme Court became more conservative and many exceptions were made to the exclusionary rule.

35. Civil Liberties and Criminal Justice Self-Incrimination The Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

36. Civil Liberties and Criminal Justice Trial Rights In all criminal proceedings, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense. The Sixth Amendment

37. Pathways Profile: Clarence Earl Gideon • His petition led to incorporation of the Sixth Amendment right to council • Granted new trial and acquitted

38. Civil Liberties and Criminal Justice Capital Punishment Can capital punishment be considered “cruel and unusual”?

39. Civil Liberties and Criminal Justice Privacy The word “privacy” does not appear in the Constitution. However, in 1965, the Supreme Court determined that the right to privacy existed as an “unstated element” in several rights in the Bill of Rights.

40. Civil Liberties and Criminal Justice Abortion 1973 case, Roe v. Wade • A woman in Texas claimed shewas raped and not legally allowed by state law to have an abortion. • Brought the case to the Supreme Court • The Court ruled 7 to 2 that the Texas law violated her constitutional right to personal privacy.

41. Abortion Recent changes in the Court’s composition have opened up the possibility of the Roe ruling eventually being overturned.

42. Civil Liberties and Criminal Justice Private Sexual Conduct Key sexual privacy cases • Griswold v. Connecticut (1965) • Bowers v. Hardwick (1986) • Lawrence v. Texas (2003)